Citation NR: 9702020
Decision Date: 01/28/97 Archive Date: 02/07/97
DOCKET NO. 94-44 875 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased disability rating for bronchial
asthma, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W.R. Spargo, Associate Counsel
REMAND
The appellant served on active duty in the United States Navy
from September 1965 to December 1969, with previous
unverified active duty. This appeal arose from a March 1994
rating decision of the Department of Veterans Affairs
Regional Office (RO) in North Little Rock, Arkansas, which
denied the appellant’s claim for an increased rating, in
excess of 10 percent, for bronchial asthma.
Upon full consideration of the evidence of record and the
procedural history of the case, the Board finds that a remand
to the RO is necessary for proper adjudication of the
appellant’s claim. While this appeal was pending, the
applicable rating criteria for the respiratory system, 38
C.F.R. § 4.97, was amended effective October 7, 1996. See 61
Fed. Reg. 46,720 (1996)(to be codified at 38 C.F.R. § 4.97).
This change in regulations will require readjudication of the
issue of an increased rating, in excess of 10 percent, for
the appellant’s bronchial asthma in order to incorporate
relevant consideration of the amended rating criteria.
Accordingly, the Board hereby REMANDS the case to the RO for
the following action:
The RO should readjudicate the issue of
an increased rating for bronchial asthma
pursuant to the above-cited amended
rating criteria.
If the claim remains denied, in whole or in part, the case
should be returned to the Board after compliance with all
requisite appellate procedure. The purpose of this remand is
to satisfy due process requirements. The Board intimates no
opinion as to the ultimate conclusion warranted, pending
completion of the requested development. No action is
necessary on the appellant’s part until he receives further
notice.
While this case is in remand status, the appellant and his
representative are free to submit additional evidence and
argument on the issues of an increased rating for bronchial
asthma. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).
J. SHERMAN
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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